BVA9504075
DOCKET NO. 93-07 970 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Whether new and material evidence has been submitted to reopen a
claim for residuals of left foot trauma.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Rebecca A. Kelly, Associate Counsel
INTRODUCTION
The appellant served on active duty from November 1942 to April
1945.
This case was previously before the Chicago, Illinois, Department
of Veterans Affairs (VA) Regional Office (RO) in December 1980,
which denied entitlement to service connection for residual for
left leg trauma, on the basis that it was not shown to have been
present in service, nor was arthritis demonstrated within one
year following his discharge.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a decision in February 1992, by the
Chicago, Illinois, Department of Veterans Affairs (VA) Regional
Office (RO), which found that the evidence the veteran had
submitted was new but not material. The evidence Hearing Officer
affirmed the RO's decision in August 1992.
CONTENTIONS OF THE APPELLANT ON APPEAL
The appellant contends that although his service medical records
were destroyed, he had injured his left foot during active duty
and that it had been noted on his separation examination; shoes
had been issued to him that cut out an area on the left shoe so
he could wear them. He further contends that any reasonable
doubt about his inservice left foot injury must be resolved in
his favor; therefore, a grant of service-connection for his left
foot condition is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence favors the
appellant's claim to reopen the claim for service connection for
residuals of left foot trauma.
FINDINGS OF FACT
1. The RO denied entitlement to service connection for residuals
of left foot trauma in December 1989; this rating decision was
timely appealed, but the appeal was withdrawn on June 11, 1990,
so that this rating decision became final.
2. Additional evidence submitted since December 1989 is new and
material and the appellant's claim is reopened.
CONCLUSION OF LAW
Evidence received since 1989 when the RO denied entitlement to
service connection for residuals of left leg trauma is new and
material, and the claim is reopened. 38 U.S.C.A. §§ 1110,
5107(a), 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a),
3.303(b,d), 20.302 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
After reviewing all of the evidence of record, the Board finds
that the appellant has submitted evidence which is sufficient to
justify a belief that his claim is well grounded. 38 U.S.C.A.
§ 5107(a)(West 1993) and Sibley v. Derwinski, 3 Vet.App. 188
(1992). That is, we find that he has presented a claim that is
plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). When a
claim is well-grounded, then the statutory duty to assist
attaches to the appellant's claim. Gilbert v. Derwinski, 1
Vet.App. 49 (1990).
Factual Background
The evidence which was of record when the RO considered this
issue in 1989 will be briefly summarized. Although the service
medical records had been destroyed by fire, upon request by the
RO, the Daily Sick Report from July 1943 through June 1944 was
part of the record. The appellant was noted to have reported to
sick call eleven times from October to the end of December 1943,
at which time he was hospitalized for an unknown condition until
January 1944. There was no separation examination. Pertinent
post-service medical records from November 1972 for an unrelated
condition, reported on a physical examination that his
extremities had no deformities, varicosities or limitation of
motion. In April 1989, the VA received a 1945 Army report by the
Surgeon General which revealed that the appellant was discharged
for medical reasons; however, the final result was not coded and
reference was made to his first and only diagnosis of mental
deficiency. In a statement received by the VA in 1988, J.P.
Adams verified in 1985 that he was in the Army with the appellant
in 1943 at Camp Gruber, Oklahoma, and visited him at Camp Gruber
General Hospital where he was being treated for a mashed left
foot. Also received by the VA in 1988, was a statement from the
appellant's oldest brother, [redacted], that stated he could
witness to his brother's broken left foot which happened at Camp
Grover, Oklahoma in 1943.
The evidence submitted after the RO's 1989 denial of his service-
connection claim included several lay statements and hearing
testimony. In May 1990 the VA received an authenticated buddy
statement from, Leroy Hamilton, that stated he had been stationed
at Camp Gruber, Oklahoma during the same time period as the
appellant and that he was there in 1943 at Camp Gruber, Oklahoma
when the appellant's left foot was crushed. In January 1992, the
VA received a second buddy statement from Leroy Hamilton, dated
December 1991, that not only stated he had served in the Army
with the appellant in 1943 at Camp Gruber, Oklahoma but also
stated that he had visited him at Camp Gruber Hospital when he
was treated for a left foot injury sustained during active duty.
In August 1992, the veteran testified that his left foot injury
occurred in 1943 during a training march when he lifted a
howitzer gun onto a truck that rolled because only the brakes on
one side had been applied. His residuals from his foot injury
continued to bother him after his discharge and by 1980's had
gotten much worse. Although he has never been treated by a VA
facility, his country doctor from Mississippi advised him to soak
his left foot in hot, salty water and to take pain pills;
however, surgery had never been recommended nor were left foot x-
rays ever taken. His complaints included swelling and the foot
was unable to be weight bearing; it was most painful across the
small bones of the foot. Although he has used a cane on and off
since 1980's, he constantly uses a cane now. He is retired,
however, after his discharge he had been employed as a farmhand
and later as a factory laborer.
Analysis
If new and material evidence is presented or secured with respect
to a claim which has been disallowed, the Secretary shall reopen
the claim and review the former disposition of the claim. 38
U.S.C.A. § 5108 (West 1991). "New and material evidence" means
evidence not previously submitted to agency decisionmakers which
bears directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in conjunction with evidence previously
assembled is so significant that it must be considered in order
to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a)
(1993).
After a review of the complete record, it is the opinion of the
undersigned that the additional evidence which the veteran has
submitted is "new and material" and accordingly, his claim is
reopened. "New" evidence means more than evidence which was not
previously physically of record. To be "new," additional
evidence must be more than merely cumulative. Colvin v.
Derwinski, 1 Vet.App. 171 (1991).
The evidence of record, at the time of the RO's 1989 decision,
revealed that the veteran had been treated during active duty on
numerous occasions in the fall of 1943, although the diagnosis or
nature of treatment was unknown. Moreover, the record supports
that the veteran had also been hospitalized for a month in
December 1943 to January 1944, albeit for an unknown condition.
A post-service examination from December 1972 described the
veteran's extremities as no deformities, varicosities or
limitation of motion.
The additional evidence submitted subsequent to the RO's 1989
final decision consisted of lay statements and testimony by the
veteran in this case, and is considered new and not merely
cumulative. The prior lay statements of record from the
appellant's friend, J.P Adams in 1988 and from his older brother,
[redacted] in October 1988, substantiated that Adams was a
comrade of the appellant's at Camp Gruber in Oklahoma during the
1943-1944 time period and that he had visited the appellant when
he had been hospitalized for a left foot injury. Although the
lay statements submitted by Leroy Hamilton in May 1990 and again
in December 1991, are similar in content to the lay statements
already of record, the two additional lay statements, are still
from yet another comrade of the appellant's, stationed at the
same time and in the same place. Furthermore, these two lay
statements are "material" because the content of the two prior
statements of record are corroborated by Leroy Hamilton's
statement and therefore, contribute to the weight of the evidence
of record to decide an inservice injury of the appellant's left
foot. Since there is a reasonable possibility that the
additional evidence, when viewed in context with all the
evidence, both old and new, would change the outcome, the
subsequent evidence is new and material. See Colvin v.
Derwinski, 4 Vet.App. (1992) and Smith v. Derwinski, 1 Vet.App.
178 (1991).
ORDER
New and material evidence has been submitted to reopen a claim of
entitlement to service connection for residuals of left foot
injury.
REMAND
After reviewing all the new evidence, in light of the old
evidence of record, a decision by the Board on the merits of the
appellant's claim for service-connection, would be unduly
premature because the record is currently incomplete,
specifically the medical evidence. Curry v. Brown, 7 Vet.App. 59
(1994). First of all, there is no VA examination of record.
Secondly, there is no objective evidence that the veteran
currently has a disability from the left foot trauma.
Before the Board can render an opinion on the issue of
entitlement to service-connection for residuals of left foot
trauma, the RO must fully develop the record. Under the
circumstances of this case, it is the opinion of the undersigned
that additional assistance is necessary, and this case is
REMANDED to the RO for the following:
1. The RO should afford the veteran
a special podiatric or orthopedic
examination. The examiner should
examine the left foot, make a
diagnosis and render an opinion as to
the etiology of the left foot
condition. All indicated special
studies must be accomplished. The
claims folder must be made available
to the examiner prior to the
examination so that the veteran's
entire history can be taken into
consideration. Any records obtained
should be associated with the record.
2. Once the above requested evidence
has been received, the RO should
readjudicate the issue of entitlement
to service connection for residuals
of left foot trauma, by evaluating
all the evidence of record, including
the new and the old evidence.
In the event that the veteran's claim remains denied, in whole
or in part, the veteran and his representative should be
provided with an appropriate supplemental statement of the case
and an opportunity to respond, and the case should be returned
to the Board for further appellate consideration if otherwise in
order.
C.P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).